IN ARBITRATION PROCEEDINGS PURSUANT TO THECOLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES

INTERNATIONAL BROTHERHOOD OFELECTRICAL WORKERS, LOCAL 1245,

Union,

and

PACIFIC GAS & ELECTRlC COMPANY,

Employer.

Re: Case No. 298, M' _discharge

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OPINION AND DECISION

OF

BOARD OF ARBITRATION

CAROL QUINNIE, Company Member

JOHN MOFFETT, Company Member

JOE OSTERLING, Union Member

BOB CHOATE, Union Member

JOHN KAGEL, Chair

APPEARANCES:

For the Union: Jennifer Marston, Esq., IBEW 1245, Vacaville, CA

For the Employer: Stacy Campos, Esq., PG&E, San Francisco, CA

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ISSUE:

Was M terminated for just cause; if not, what should be the remedy?

BASIS FOR DISCHARGE:

The Grievant, employed on June 19, 1989, was terminated on May 4, 2009, at

which time he was a Crew Foreman.

His termination notice, dated May 5, 2009, read:

" ... After an investigation by Corporate Security on April 2, 2009,it was determined you made racial slurs to an employee, physicallyassaulted him and challenged him to a tight.

You have violated USP [Utility Standard Practice] 1, the EmployeeConduct Policy and the Compliance and Business EthicsPolicy .... " (Jt. Ex. 2)

BACKGROUND:

G

The Grievant had been on vacation. When he returned to work he met his

colleagues in the bull room and asked who had been using his truck in his absence.

G testified that the Grievant asked him if G . had dirtied his truck

like he always had. G responded that he had pissed in the truck. The Grievant

responded, "You would do that, you dirty Mexican .... You and your 10 kids." The

Grievant said something about hurting G 's shoulder which had been previously

injured, although G could not remember if he told that to Management later. (Tr.

65-66) G said, "If you're going to do it, go ahead and do it or if you're going to

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come and hit me, come and hit me." The Grievant responded something like "I might do

that." The Grievant told him Jesus was not going to save him this time. (Tr. 54-55)

As the crew went into the yard to get into their trucks G , wearing a hoodie

sweatshirt, was told by the Grievant, "You better keep walking down with your hoodie

on, you little Bitch." On the Grievant referring to his hood as a hat, G said, "One,

it's not a hat, it's a hood from a sweatshirt and, two, I'm not afraid of you." On repeating

the last comment, the Grievant approached him and "we had kind of a chest bump." (Tr.

58) The Grievant started cussing in his face, "You better start respecting me, you

motherfucker, you have to respect me, I have twenty fucking years with the company and

you think everyone is like you who has five years." According to G , the Grievant

started rambling as to how he would kick G 's butt after work or at work. The

Grievant was pulled away by another employee. (Tr. 59)

G received a ''written reminder" concerning his remark about pissing in the

Grievant's truck. (Tr. 87)

B_ andO

B heard the Grievant say something about a "dirty Mexican" and

"Oh, you guys having a bunch of kids," (Tr. 94) In the yard B heard the Grievant

"mentioned something abut better respect me, you know, I have somany years or so much time over you; otherwise, you know, if youdon't do that, I can kick your ass.

You know, so some words again, it kind of heated up. So Iwas just like, oh, something serious has got to be going on.

Then he was talking, G was just, you know, what'swrong, whatever? And then they got kind of close and kind of

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bumped chests or chest-bumping but there was no punches, noneof that. ...

. . .it was used for more like getting close, probably touched,but it was more words, you know, about being respectful ordisrespectful.

... he got close but I don't know if he was just moreshowing him, I'm just telling you to show me respect, ... .It wasjust more words, I'd say." (Tr. 95-96)

o ,who was assigning work in the yard, testified:

" ... As I was walking out, I looked up, I observed G and Mkind of like pretty much close, just taking or interacting ...

As far as I could see, there was no contact or anything butthey were pretty close and at that point, I decided to go see whatwas going on. I separated them, I asked them what was going onand they were just like, they were arguing or something." (Tr. 122)

Grievant:

The Grievant testified that on coming to work he asked who used his truck.

G said, "Don't worry, all I did was piss in your bin and move your tools around."

(Tr. 128) A year and a half earlier the Grievant and another employee had been accused

of urinating in their truck bins. Because the Grievant did not know G knew about

that accusation the Grievant became upset. He did not recall any remarks he made to

G until a co-worker told him later that he had said inappropriate things in the bull

room (Tr. 134-135, 140-141) and that he should apologize to G and B . (Tr.

149) Although a supervisor had made a note that the Grievant told him that the Grievant

told G "that God wasn't going to save his job or going to save his mortgage," the

Grievant did not remember saying that. (Tr. 147)

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In the yard the Grievant was inspecting his truck bins when G came by. The

Grievant mentioned something about his hood "And he had his head down walking

shamelessly." (Tr. 131) The Grievant told G , "Keep your head down and just keep

walking." G "kept mumbling, 'What are you going to do,' antagonizing me." (Tr.

132) "Why are you talking to me like this? I thought we're friends, you know. Why are

you antagonizing me?" (Tr. 139) He did not challenge G to a fight, threaten him,

nor remember bumping him with his chest or belly. (Tr. 132) They did get close. (Tr.

158) He denied referring to G as a bitch (Tr. 142), or did not remember doing so or

calling G a motherfucker. He told the LIe that G ,would not talk to him like he

did if they were not at work. (Tr. 163)

According to the Grievant, his normal cordial relationship with G .'whom the

Grievant described as his friend, was different that day: "I had a bad day. I had a bad

morning." He denied having any other bad day similar to this one. (Tr. 160)

Apology

G' testified that later in the day the Grievant apologized to G . which

G believed to be sincere.

"I need to talk to both of you guys [G and B . .]. 1apologize for what I said, 1 wasn't thinking, I was upset. I havestuff going on in my life that I'm dealing with and I didn't mean tosay what 1 said earlier so 1 apologize to you, t!> ,for racialremarks, and I apologize to you as well." (Tr. 79-80)

Both said they forgave him.

The Grievant then talked to G , according to G

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"[A]bout the chest-bump ordeal and he said he didn't want to losehis job, he said he was sorry, just something snapped in him and hejumped ....

I forgave him and I was like, you know, we had this tension. Hejust spilled out his guts to me and Ihad all this and Iforgave himand Iwas trying to break the tension, fooling around, and he askedif I could talk to Bob [supervisor] for him and, you know, wetalked things out and we are on even grounds now. It's not like Idon't like M and M doesn't like me. We can work togethernow as we did that night. ..." (Tr. 80)

Work extended late that day and the pair ate together. (Tr. 81) There were no further

problems between them as there had been none before. (Tr. 74-75) They worked together

on and off from the date of the incident, April 2, 2009 until the Grievant was terminated

on May 5. (Tr. 75)

The Grievant in his apology gave G

"a kind of brief scenario of what was going on at home, he knowsmy wife so he kind of understands what was happening and hefully understands now-that he did-as to what I got a little bentout of shape over something really stupid." (Tr. 135)

Decision to Discharge:

In making his determination to discharge the Grievant his Superintendent talked to

corporate security. Corporate security had done an investigation to resolve whether an

"actual chest-bumping" had occurred, given disagreement among witnesses concerning

that issue. Discharge was appropriate in his view because physical contact is

inappropriate and,

"there was a piece about meeting him after work and they wouldclear the air then which, to me, meant we were going to havefollow-up problems. So I just felt that this was never going toresolve itself." (Tr. 26)

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The Superintendent knew there were no further problems between G and the

Grievant for the remainder of the time that the Grievant was employed, even though they

worked together. (Tr. 42-43) Nonetheless:

"I thought about it a lot but 1was convinced that this would happenagain, that if we didn't remove Mr. M out of the workplace,that at some point we were going to have this problem again. So tome, when people get caught at things, there's this kind of cooling-off period and all's well but it's going to come back once you getto physical confrontation. My feeling is that will comeback intoplay again in the future.

Q. [by Ms. Campos, Employer Counsel] Is that based on your 40years of experience at PG&E?

A. Yes, it's seeing-there have been many things over the yearswhere we've had crews that we have had confrontation about." (Tr.46-47)

The Superintendent maintained that view notwithstanding that there was neither any

confrontation after work on the day in question nor in the month that followed. He was

convinced that somewhere down the line that the Grievant was "going to take G

on .. .I think this will flare back at him." (Tr. 49) This view was not based on something in

the Grievant's character but "more my life experience." The Superintendent had had no

major problems with the Grievant before. (Tr. 49-50) He had talked to the Grievant who

told him the Grievant was going through some problems at home; "that he just lost it."

(Tr.51)

POSITION OF THE PARTIES:

Position of the Employer:

That the Union's attempt to downplay the seriousness of the Grievant's conduct

must be rejected; that the Company is entitled to provide all employees a harassment-free

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and safe workplace with no place for individuals to engage in racist and physically

violent behavior towards others, especially those they are assigned to lead; that the

Grievant had every opportunity to avoid physical confrontation but did not do so; that on

notice that physical contact occurred the Grievant was immediately removed from duty;

that discharge is the appropriate level of discipline was based on the physical contact that

accompanied the Grievant's racial slurs; that the precedential authority of the Parties

dictates termination for engaging in acts of physical violence; that the weight of the

evidence supports a finding that the Grievant chest-bumped G and told him he

would physically injure him; that the seriousness of the Grievant's misconduct justified

termination; that the Superintendent was concerned that the serious misconduct could

arise again in the future even if the two employees were currently getting along based on

40 years offield experience; that as a Foremen the Grievant was a leader and ifhe could

get away with his misconduct it would send the wrong message to others who had less

service then he did; that there had been training as to what kinds of behaviors were not

allowed; that while it is clear that G .was not afraid of the Grievant, it is unclear how

other members of the crew perceived him and what they took away from the incident;

that the Grievant's misconduct is exactly the type of behavior the Company is trying to

eliminate, one employee harassing and threatening another based on race and seniority;

that the Company's desires are well communicated and documented and either were

known or should have been known to the Grievant; that in this case the Grievant even

after leaving the bull room had the opportunity to cool down but did not, reigniting the

exchange involved;; that this case is like a Case 227 where the dispute started with a

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verbal altercation and then one of the parties crossed the line and turned the verbal

altercation into a physical one, and it is more aggravated than in Case 227 for the

Grievant also simultaneously threatened to physically harm his victim after working

hours; that the Grievant's claimed excuses of having a bad day does not relieve him of his

responsibility for stress does not give anyone the right to engage in racist rants and

physically bump his victim and most reasonable people would expect to be terminated in

such a situation; that Grievant was not entitled to react to G 's comment in response

to the Grievant accusing him of dirtying his truck "like always"; that the Grievant

showed that he believed he could treat G with disrespect yet demanded others

respect him because of his years of service; that the Grievant could not explain what he

meant by the comment that G was walking "shamelessly" through the yard and that

the victim did not fear him; that the Grievant's chest bumping and demand for respect

based on his years of service is troubling as the Company is not the military and operates

on the principle that all voices are equal and deserve respect, not that employees with less

seniority are somehow inferior; that the Grievant's apology came only after he and others

were interviewed by supervision and accompanied by a request that G speak with

the supervisor to let him know that he apologized and that G was not concerned

about working with the Grievant; that the Grievant knew that his conduct could result in

termination; that if Grievant is reinstated he should be denied back pay for the Grievant

should not be welcomed back to the Company with a hero's welcome and a large check.

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Position of the Union:

That the Company's failure to seriously consider all facts and circumstances,

discharge was excessive; that the decision was made with no suggestion of continued

animosity between the Grievant and G . that the factors of lack of severity of the

comments, past history and apology on the same day as the incident were not considered

appropriately; that there was no identification of a single concern about the Grievant that

he was likely to repeat similar behavior; that Arbitration Case 227 is inapplicable given

the far more egregious facts of that case where the employee in that case exhibited

extreme behavior and there was sufficient reason to fear repetition; that the Employer has

the burden of proof that the discharge is reasonably related to the seriousness of the

proven offence in all of the circumstances of the case as held in Arbitration 293, a case

concerning USP-I, the same policy involved here, and the Employer has not done so.

DISCUSSION:

Just Cause:

For the Company to establish just cause for termination it must show that the

claimed misconduct of the Grievant occurred, that the Grievant either knew or should

have known that he could be disciplined for it, and whether under all of the circumstances

the discipline of the Grievant was reasonable.

Grievant's Misconduct:

The record established that the Grievant used racist epithets in the bull room and

profanities directed towards G in the yard. The Grievant did not contend otherwise.

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The Company knew that but it was not until the corporate security investigation was

completed did it conclude that there was a physical assault by the Grievant.

No Workplace Violence Proven:

Whatever the basis for corporate security's conclusions, whether there was such an

assault must be based on the evidence presented at the arbitration hearing. That evidence

is ambiguous at best as to whether there was anything but incidental accidental contact as

opposed to intentional physical force directed by the Grievant toward G as the

Company contends. The basis for this conclusion is the testimony of the two persons not

directly involved in the confrontation, B and 0 i as well as that of G

quoted above. Their testimony was that either no bump occurred or it was "kind of' one.

This evidence is insufficient to show that the Grievant engaged in workplace violence as

opposed to being involved in the Grievant-caused verbal confrontation.

That the Grievant either know or should have known that his verbal misconduct

violated Company standards and would be grounds for discipline was clearly shown by

his past training, his own apology as well as plain common sense.

Appropriate Discipline:

In this case the decision to discharge the Grievant was based in major part on the

Company conclusion, not supported in this record, of physical assault which in its view

was workplace violence. The Superintendent emphasized that his conclusion to discharge

depended on the conclusion that there was such an assault and his further conclusion that

once there was such an assault that it would at some point be repeated in the future. The

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Superintendent did not draw that latter conclusion from anything specific about the

Grievant, as opposed to his general experience.

To the extent that the Company relies on Case 227, and while the general

statements of that Panel concerning workplace violence is beyond dispute, the employee

there picked up a table and struck a co-worker with it after leaving the room and then

coming back into it to carry out the assault. It was not the result of close but minimal

touching, if there was touching at all, during the verbal confrontation in this case.

Accordingly, with the negation of the alleged physical violence in this case, the

question remains as to what the appropriate discipline of the Grievant is. As noted, that

he was subject to discipline is clear given his racial and profane comments, as well as his

statements concerning potential fighting with G . As the Company points out, in

addition the Grievant was a Foreman who had some obligation to demonstrate leadership

notwithstanding his claim of having a "bad day." Finally, as a 20-year employee he had

to know of the unacceptability of such conduct.

In this case the Grievant was terminated in May 2009. The case was not referred to

arbitration until March 2010. The hearing was in June 2010 and the briefs were due in

September, although for unrelated reasons the Company's was not received until

November. The Company agrees that that latter delay does not affect any back pay

award.

To reinstate the Grievant without back pay would amount to an I8-month

suspension. Instead, what needs to be evaluated is what the appropriate suspension would

have been in this case given that the allegation of physical assault and workplace violence

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cannot be sustained because of insufficient evidence to show that such occurred.

Weighing all of the circumstances of this case, a 60-day suspension is reasonable in this

case for the serious verbal misconduct of the Grievant that was established.

DECISION:

1. The discharge of the Grievant was not for just cause.

2. A 60-day suspension of the Grievant was for just cause. The Grievant shall

forthwith be reinstated without loss of seniority and receive the pay and benefits he

would have received, less 60-days' pay and benefits and less outside earnings. The

computation of the pay and benefits due the Grievant, if any, is remanded to the Parties,

the Board of Arbitration retaining jurisdiction in the event the Parties cannot agree

thereon.

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